Smith v. State

• Decision Date: 23 May 1917
• Docket Number: (No. 4414.)
• Citation: 195 S.W. 595
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 595

195 S.W. 595

SMITH v. STATE.

(No. 4414.)

Court of Criminal Appeals of Texas.

May 23, 1917.

Appeal from District Court, Clay County; Wm. N. Bonner, Judge.

Alfred Smith was convicted of murder, and he appeals. Affirmed.

Taylor, Allen & Taylor and Wantland & Parrish, all of Henrietta, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was convicted of the murder of his father, his punishment being assessed at six years' confinement in the penitentiary.

Sunday morning, prior to the homicide at night, appellant and his father had some words in regard to the use of appellant's horse; the father desiring to use the horse driving cattle that day. Appellant agreed to the use of the horse, provided he could get another horse and drive to Henrietta, to which place he was going. Henrietta was about 18 miles distant. The father became very much enraged during the conversation, and threatened to "get" or "fix" him. The son went to Henrietta, returning at night, about 12 o'clock or 1 o'clock. Upon reaching home, appellant put his team and buggy away, and went to the house to go to bed. At the gallery he sat down to take off his shoes, so he would not disturb his mother, who, it seems, was a light sleeper, and perhaps somewhat nervous. This was the custom among the children, for the reason above stated. While removing his shoes, appellant saw some one approaching him with what he thought was a gun. He believed the party to be his father, and anticipated the execution of the threat made the previous morning. Appellant ran around the house to get out of danger. The sister of appellant, who had returned from some place where she had been during the day, also saw some one in the yard. She returned home shortly before appellant. After going to his room, appellant went to another room to ascertain if any of the guns belonging on the place had been taken away from their accustomed place of deposit. He discovered that a rifle was gone. He took a shotgun, and went to see if his father had the gun, and also to ascertain his purpose in being armed. On the gallery he found his father, lying down on a cot. He says, when he stepped upon the gallery, his father turned and reached for his gun; appellant shot; his father was killed by this shot. A rifle was found at or near the cot where deceased was situated.

The state's theory was that appellant got the shotgun and sought his father for the purpose of killing him, and that the father was asleep when shot. Two theories were thus presented by the evidence: First, that by the state, as above mentioned; second, by the defendant, to the effect that his father had threatened his life in the morning, and that he anticipated the execution of the threats, his father being armed in the yard when appellant returned, and the immediate movement of his father to secure the gun at the time he (appellant) went upon the gallery. His theory also was that it was not his purpose to kill, but to understand from his father what his purposes were under the circumstances as presented in the morning and at night. The case was tried upon these conflicting theories. It was also in evidence that the deceased was high-tempered, and became enraged easily at members of his family, and whipped his children at times in a cruel manner when so angered, and in doing so used ropes and quirts. It was also shown that he treated the girls in the same manner as he did the boys with reference to these whippings. There was evidence also that the deceased in anger assaulted his wife, the mother of appellant. Appellant testified that his father tried to kill his mother at one time; he said he would kill her, and got cartridges for that purpose; and he got a gun and threatened to kill his mother at another time, and was prevented by members of the family; that this occurred about a year before the homicide. Other witnesses testified to the same conduct of deceased towards his wife on these and other occasions. There was evidence that, when deceased was not enraged or angered, he treated his family fairly well, and it was only when he was in anger that he treated them in the cruel manner indicated. Evidence with reference to these matters covered a period of about 15 years. Several witnesses, who had known the deceased for 25 or 30 years, testified that his general reputation for peace, quietude, and order in the community was good. Many of these witnesses were cross-examined with reference to fights or quarrels that the deceased had been engaged in, and with reference to his having been a high-tempered, quarrelsome man; many of them admitting that he had been engaged in fights and that he was quarrelsome and high-tempered. Murder, manslaughter, and self-defense were issues raised by the evidence and submitted to the jury by the court.

Mrs. Yarbrough, a lady about 69 years of age, a witness for the defendant, testified on direct examination to numerous acts of cruel treatment on the part of the deceased of the appellant and other members of the family in his presence. On cross-examination she indicated that she was cognizant of some facts that were not drawn out on direct examination and indicated a hesitancy to relate them. The counsel for both the state and defendant urged her to proceed. It developed that the occurrence she had reference to took place 8 years prior to the homicide. The court then of its own motion directed her not to give the testimony; the appellant reserving the bill of exceptions on various grounds, in which it is stated that her testimony would have been as follows:

"That about 8 years ago, and shortly prior to the birth of the said child, she was present in the home of the deceased, and saw the deceased beat and inflict serious injury upon the wife of the deceased and the mother of the lunatic child, and that shortly thereafter, and as a result of such beating and striking, the said child was born prior to its natural time, and as a result thereof said child was and has been a lunatic from birth, and wholly without mind or reason, and that the defendant was present and knew of his father's treatment of his mother at said time."

Some of this statement is manifestly the conclusion of the witness. That the premature birth and idiocy of the child resulted from the assault would come within the class of opinion testimony. The only part of the testimony which would in our judgment have been relevant to the issues in the case would have been that showing that the deceased assaulted his wife, and this only in the event appellant knew or had been informed of it prior to the time of the homicide. Specific acts of violence committed by deceased on others, when known to the appellant, would have been admissible on the issue of self-defense. Heffington v. State, 41 Tex. Cr. R. 315, 54 S. W. 755; Spangler v. State, 41 Tex. Cr. R. 424, 55 S. W. 326; Hysaw v. State, 69 Tex. Cr. R. 562, 155 S. W. 941; Branch's Ann. P. C. p. 1175, and cases there cited. Appellant disclaimed any knowledge of the occurrence about which Mrs. Yarbrough sought to testify. He said:

"I do not remember the conduct of my father toward my mother when she was sick. I do not remember of him doing anything to her at that time. I remember when the last child was born. I was at home then, but I do not remember of anything that happened at that time between my father and my mother."

The fact that deceased did assault his wife, and threatened and apparently made preparation to kill her, on various occasions much nearer the date of the homicide than that of the proffered testimony of Mrs. Yarbrough, and that these occurrences were known to appellant, was established beyond controversy. The fact that the deceased was a violent, abusive man, and cruel to the members of his family when angry, can hardly be said to have been a disputed issue. This fact was proven by every member of the family who testified and by many of the neighbors. The only evidence controverting it was that in his conduct with the public he bore the reputation of being a peaceable, orderly man, and the fact that witnesses who had been in the family at times had seen no misconduct on his part. That the deceased had struck and abused his wife in the presence of appellant was testified to by appellant; he giving several instances in which the deceased had not only struck his wife in his presence, but had tried to kill her, and these instances were to date, coming up to about one year before the homicide. Mrs. Smith, the mother of appellant, testified herself to various occurrences of this kind taking place in the presence of appellant, stating that during the year of the trial her husband had assaulted her; that she always kept his "six-shooter" away from him to prevent violence, and kept his cartridges hidden from him; that on one occasion he had gotten his gun and said he was going to "thin them all out," and that on another occasion he pushed her out of the door on the ground, and sprained her wrist and made her mouth bleed; that this occurred about two years ago, and that on these occasions appellant was present.

In appellant's third bill of exceptions complaint is made that the court excluded the cross-examination of the witness Plemons, by which appellant would have shown that the deceased was convicted of theft in 1887, and sentenced to 5 years' imprisonment in the penitentiary, and was pardoned after serving 3 years. Appellant, in the able brief and argument made by his attorneys, insists that the scope of the examination of this witness was such as to render the exclusion of the matter mentioned reversible error, basing this contention upon the ground that the state had proved by the witness the general reputation of the deceased for a period of 32 years prior to the homicide. As we do not so interpret the bill of exceptions, we set out that part of it upon which this contention is based:

"The state placed on the witness...